The Censor: He Has a Face, and He is Us.

Face to Face:  Social Media and the Masks We Share

For those intrepid few who dare to express themselves as indiscreetly as the English language will allow, there is AB 1844, soon to be officially Labor Code Section 980 et seq.  The California legislature has come to the protection of persons too dense, too indifferent, too rich, too independent or too eccentric to give a damn what they post on social media.   Of course, it also has provided protection for even the cautious citizen who has no personality to hide.  No one, not even someone whose greatest contribution to public debate is how to cook vegetables, should be required to give up his username and password to a meddling employer.

In the early days of social media, I think there was an illusion that a person could be “real” in that environment.  The illusion is over.  If you want to be real, transparent, and open, well, it turns out the old fashioned friends who actually meet over dinner or shared activities may be the answer after all.

Did we once hope that social media would provide that open intellectual space where viewpoints had room to breathe?  If so, we soon were jolted from our dream by investigators who actively rooted out contrarian or offensive viewpoints to deny us employment or decline our membership applications.

     

But I sense the communal censor has grown stronger over the years.  That golden age of naïve Facebook users produced some colorful and interesting narcissists.   It still does.  But most people have learned at this point that “image control” and “job protection” or “career management” involve either putting nothing on social media, or only the most bland and boring of information that will assure you that coveted status of “safe,” “normal,” and “employable.”  The social mask we wear now must expand to cover a face the size of Facebook.    Maybe LinkedIn was always the final resting place of the “social” self. 

In the work environment, “punished” most often means fired.  “Freedom of speech” does not exist in non-public work environments.   Employers with “open door” and “open communication” policies routinely punish employees criticizing a manager or company practice.    In healthy and innovative work environments, wild, jarring and “indelicately” expressed ideas may actually be encouraged.  Alas, in many other places the free expression of an idea will likely cost your job.  But what if the “speech” occurs outside the workplace, after work hours, and states strong negative employee opinions about the employer?  In a phrase:  what are an employee’s privacy rights?

A lot has been written on this topic of “social media privacy.”  I will not rewrite it.  Instead, I will simply reference the essential new developments created by some NLRB rulings and AB 1844.  The National Labor Relations Board in May 2012 issued Memorandum OM 12-59 that traces the NLRB rulings, and provides a “model” social media policy.  The concern of the NLRB appears to be primarily that social media restrictions can be overbroad in limiting “concerted activity” among workers to address grievances at work.   I have posted the complete “Office of the General Counsel” memorandum for your reading pleasure.  It includes a very useful model policy that General Counsel states is NLRA compliant.

Labor Code Section 980(a)-(e) will prohibit an employer from requiring the employee to access the employee’s social media in the employer’s presence, or to provide the employer with the employee’s username or password to a social media site.  Section 980(e) is an anti-retaliation provision to protect employees who resist illegal employer demands that violate Section 980.  

The remedies for a Section 980 violation appear to be a general civil cause of action for violation of the statute, and quite likely a common law right to proceed with a “wrongful termination in violation of public policy.”  Section 2 of the new statute states that the Labor Commissioner has no duty to investigate or determine if a violation has occurred, leading me to conclude that there is no “exhaustion of administrative remedies” requirement of the employee, who may proceed by direct civil action for the full measure of tort damages. 

Here is the full text of the NLRB General Counsel's Opinion Memorandum:  Memorandum OM 12-59 Office of the General Counsel .

Here is the full text of AB-1844, soon to be CA Labor Code Sec. 980:  California Legislative Information: AB-1844 Social Media Privacy

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